‘Black Friday’ prosecutor now investigating daily fantasy sports
By Brent Holloway
According to a report from the Wall Street Journal, the federal prosecutor behind the shutdown of online poker in the United States has now turned his attention to daily fantasy sports.
US Attorney Preet Bharara’s office in the Southern District of New York is now investigating whether the daily fantasy business model violates federal law, according to the story, which cited unnamed sources. It’s the latest in a string of inquiries into DFS that are popping up with increasing frequency, and some believe Bharara’s involvement represents a significant escalation.
“Because of his past and his reputation, this is probably the most frightening development yet for the industry,” attorney Daniel Wallach told the WSJ.
The investigation is reported to be in its early stages, and there’s no indication how it might overlap with any of the ongoing investigations, including those conducted by the New York Attorney General’s office, the FBI and the Department of Justice, as well as a federal grand jury that is reportedly being convened in Florida to investigate similar issues.
The Wall Street Journal did not mention specific laws, but it would seem the Illegal Gambling Business Act would be relevant. Enacted in 1970, it makes violation of state gambling laws a federal crime.
According to New York Penal Law 225.00, a contest of chance is defined as “any contest, game, gaming scheme or gaming device in which the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein.”
How the state defines a “material degree” of chance is not clear.
Joe Brennan, a veteran of the online gaming business, weighed in on the news Wednesday morning on Twitter.
With the WSJ piece about DFS & SDNY/DoJ, it’s important to keep a few things in mind b/f things get out of control:
There are three federal laws to be considered: Wire Act (1961), IGBA (1970) and UIGEA (2006). Simply, Wire Act prohibited interstate sports betting; IGBA uses violation of state gaming law to target organized, criminal gambling. UIGEA made is a crime for financial co’s to process “illegal” online gambling transactions which Congress defined at length.
Congress was fully aware of Wire Act & IGBA when it passed UIGEA. It’s why they defined fantasy sports v illegal sports betting. And as we’ve heard in the NJ sports betting suit, Congress need only act on a rational basis for its laws to withstand challenge.
keep this in mind w/ rumors of SDNY investigating the “legality” of DFS. DOJ enforces laws passed by congress. It does not make law. DOJ does not judge the validity of a law: Federal courts do that. What DOJ can do is determine if laws they’ve been charged to enforce have been broken. Thus the separation of powers.
Given the fed laws here, while SDNY will likely determine if DK/FD violated IGBA by violating NY State gambling laws SDNY would have a heavy burden to make a case under UIGEA, given the definitions provided by Congress (IMO, obviously).
It’s also more likely SDNY looks at other charges (i.e. Fraud, etc) unrelated to the status of DFS under Fed law, which is valid. So if there is any “legality” under review by SDNY it is likely re NY State law triggering IGBA. Also valid. Not the UIGEA definition
the point of this is, states have the right to regulate, DOJ to enforce the laws Congress makes. DFS has to comply. But the media, by reporting rumors & speculation v. news, has poured gas on this. And I doubt the coverage improves in quality soon.
Poker & DFS. It’s an interesting comparison, but apples & oranges. Fantasy has a UIGEA pass, poker doesn’t. Fair? Maybe not. But the “Preet killed poker, now after DFS” is absurd tabloid journalism & intellectually lazy given the Fed laws & definitions.
Given the reaction of operators when the grand jury in Florida was reported, it would not be surprising to see some sites decide to bar players from New York while the investigation is ongoing. Yahoo, Star Fantasy Leagues, FantasyDraft and DraftOps are among the sites no longer operating in Florida, and Amaya-owned StarsDraft withdrew from all but four states earlier this week.
The industry’s two most prominent sites, FanDuel and DraftKings, continue to operate in all states other than Nevada, Washington, Louisiana, Montana, Arizona and Iowa.
http://dailyfantasytalk.com/2015/10...cutor-now-investigating-daily-fantasy-sports/